Publication Date
4-2018
Abstract
Courts struggle to deal with evidence relating to the existence of karst terrain and the impact of human activities on karst terrain. Although courts often must hear cases involving complex scientific issues, karst seems to prove especially problematic, perhaps because of the lack of uniformity and the site-specific nature of the resource. Helping Others Maintain Environmental Standards (HOME) v. Bos, 406 Ill.App.3d 669, 941 N.E.2d 347 (2010) ("Bos"), represents the most extreme example of a court struggling with evidence relating to karst matters. The court found against the plaintiffs, primarily because the expert witness admitted that additional testing could have been done, but was not, due in part to financial constraints. One legal treatise referred to the defense's "relentless theme of studies not done" as "raging, fuming, "it's-all-an-environmental-conspiracy" presentation (Rogers Environmental Law, 2d., Section 4:18). This case explicitly raises the questions that many others implicitly raise. How many studies are enough? Which studies are sufficient? The Bos case and a variety of other published opinions involve courts analyzing expert testimony as to karst matters and determining whether such evidence is sufficient. Examination of these cases proves useful for future litigants and experts. The cases examined involve a variety of situations, including Environmental Impact Assessments and various citizen challenges to development. The review reveals that courts apply inconsistent standards and then use inconsistent analysis in the application. Some of the inconsistency can be explained by the context of the case, while others cannot. Analysis of the court cases indicate that courts are generally ill-equipped to deal with expert testimony related to karst matters and that this testimony may prove to be more problematic than other technical, scientific evidence due to the nature of karst as a heterogeneous resource depending upon site-specific studies and examination. This circumstance further raises the issue of the cost of expert testimony relating to karst in court cases and whether karst investigations should instead be conducted by state or federal agencies. However, if these agencies should conduct the investigations, do the agencies have adequate resources to do so? The paper recommends that the scientific karst community further educate lawyers, judges and citizens on the scientific aspects of karst, including the heterogeneous nature of karst. Ultimately, however, expert witnesses in karst matters will be forced to incorporate education of the court into their reports and testimony, to the extent that the court allows.
Rights Information
DOI
https://doi.org/10.5038/9780991000982.1023
Karst, Scientific Uncertainty, and the Law
Courts struggle to deal with evidence relating to the existence of karst terrain and the impact of human activities on karst terrain. Although courts often must hear cases involving complex scientific issues, karst seems to prove especially problematic, perhaps because of the lack of uniformity and the site-specific nature of the resource. Helping Others Maintain Environmental Standards (HOME) v. Bos, 406 Ill.App.3d 669, 941 N.E.2d 347 (2010) ("Bos"), represents the most extreme example of a court struggling with evidence relating to karst matters. The court found against the plaintiffs, primarily because the expert witness admitted that additional testing could have been done, but was not, due in part to financial constraints. One legal treatise referred to the defense's "relentless theme of studies not done" as "raging, fuming, "it's-all-an-environmental-conspiracy" presentation (Rogers Environmental Law, 2d., Section 4:18). This case explicitly raises the questions that many others implicitly raise. How many studies are enough? Which studies are sufficient? The Bos case and a variety of other published opinions involve courts analyzing expert testimony as to karst matters and determining whether such evidence is sufficient. Examination of these cases proves useful for future litigants and experts. The cases examined involve a variety of situations, including Environmental Impact Assessments and various citizen challenges to development. The review reveals that courts apply inconsistent standards and then use inconsistent analysis in the application. Some of the inconsistency can be explained by the context of the case, while others cannot. Analysis of the court cases indicate that courts are generally ill-equipped to deal with expert testimony related to karst matters and that this testimony may prove to be more problematic than other technical, scientific evidence due to the nature of karst as a heterogeneous resource depending upon site-specific studies and examination. This circumstance further raises the issue of the cost of expert testimony relating to karst in court cases and whether karst investigations should instead be conducted by state or federal agencies. However, if these agencies should conduct the investigations, do the agencies have adequate resources to do so? The paper recommends that the scientific karst community further educate lawyers, judges and citizens on the scientific aspects of karst, including the heterogeneous nature of karst. Ultimately, however, expert witnesses in karst matters will be forced to incorporate education of the court into their reports and testimony, to the extent that the court allows.
